On Wednesday, a federal court in Seattle issued a nationwide temporary restraining order allowing nonprofits to continue to provide limited legal assistance to immigrants without being forced to formally represent them in immigration court. The order was issued in a lawsuit brought by the Northwest Immigrants Right Project (NWIRP) after it received a “cease and desist” letter last month from the Department of Justice’s Executive Office for Immigration Review (EOIR), the agency which oversees the nation’s immigration courts.
The cease and desist letter claimed that NWIRP was violating 2008 rules intended to combat fraud and malpractice. These rules require any attorney who “engage[s] in practice or preparation” of an immigration case to formally represent a person in immigration court. With over 500,000 people currently in immigration court, nonprofit organizations don’t have the resources to individually represent every immigrant. Instead, organizations routinely provide limited legal help in the form of “know your rights” presentations, case screenings, and assistance in filling out paperwork.
As NWIRP explained in its motion for a Temporary Restraining Order, the cease and desist letter blocked such work entirely, preventing “NWIRP attorneys from advocating on behalf of unrepresented persons unless NWIRP can commit in advance to assuming full representation of their case before the immigration court.”
The two cases that led EOIR to send the cease and desist letter started with exactly the kind of routine limited legal services that NWIRP provides for hundreds of immigrants in deportation proceedings, including hundreds who are detained at the Northwest Detention Center while awaiting court hearings. One of those involved a NWIRP attorney who helped an immigrant fill out a handwritten motion asking the immigration court to reopen her case, explaining that she had unintentionally missed a previous hearing. The motion included a statement that NWIRP “is assisting [this individual] in submitting this motion to reopen.”
Even though NWIRP had followed this practice for years without any complaint, EOIR’s cease and desist letter demanded that it immediately stop doing so, claiming that the 2008 rule required NWIRP staff to formally take the case if they engaged in any “study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities.”
This letter sent shockwaves through the nonprofit legal services community. Seventeen nonprofits submitted an amicus brief in NWIRP’s lawsuit, asking the judge to prevent EOIR from issuing similar letters to them. These organizations noted that there are dozens of similar groups around the country that provide limited legal assistance to people who are forced to represent themselves in immigration court, either because they cannot afford an attorney or there are none available to take their cases. These organizations routinely help people in the exact same manner as NWIRP. As the organizations explained, EOIR’s enforcement of the 2008 rule —if allowed to stand—would have a “devastating impact on the vast segment of immigrants who are unable to secure full-scope legal representation.”
At the federal court hearing in Seattle on Wednesday, U.S. District Court Judge Richard Jones pressed the Department of Justice’s attorney as to whether it had forfeited any right to go after NWIRP, since “[n]ine years went by with no action” before the letter. He also pressed the government on what it meant to provide an immigrant with “auxiliary assistance,” questioning how a lawyer would know where to draw the line. The government attorney had no clear answer. The government also indicated at the hearing that it intended to send out similar cease and desist letters to other legal services nonprofits.
Faced with the government’s refusal to back down, Judge Jones issued a nationwide restraining order blocking the government from enforcing the 2008 rule entirely. The case will now proceed forward with NWIRP seeking a permanent injunction that would block EOIR from restricting its work.